Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00701-LTB-MJW

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Filed 04/27/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00701-LTB-MJW NICOLAS MEDRANO, Plaintiff, v. KARL SCHERCK, Defendant. ______________________________________________________________________________ RESPONSE TO MOTION FOR CONTINUANCE ______________________________________________________________________________ Defendant, KARL SCHERCK, by his attorneys, THOMAS S. RICE and GILLIAN M. FAHLSING of the law firm SENTER GOLDFARB & RICE, L.L.C., hereby responds to "Plaintiff' Motion for Continuance Pursuant to F.R.C.P. 56(f)" (hereinafter "Motion") (Doc. # s 59) as follows. 1. The crux of the argument set forth in Plaintiff' Motion is that he needs leave of s

court to conduct discovery in order to defend against Defendant' motion for summary judgment s that is currently pending before the court. As a preliminary matter, a review of the procedural history of this case is instructive in demonstrating why this motion is improper and should be denied by the Court. 2. Plaintiff filed his original Complaint in state court on December 8, 2003.

Defendant removed this case to federal court on April 8, 2004 (Doc. # 1 ­ 3). On April 14, 2005, Defendant moved the Court to dismiss Plaintiff' case for lack of prosecution and failure to s cooperate in discovery (Doc. # 31). On August 12, 2005, the Court granted in part and denied in

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part Defendant' motion and ruled that Defendant was excused from giving a deposition (Doc. # s 42). On October 14, 2005, the parties attended a status conference with the Court and the Court re-set a discovery cutoff date of January 30, 2006 and a dispositive motion deadline of February 28, 2006 (Doc. # 47). 3. Cumulatively, Plaintiff had over two years to conduct discovery, yet he did not

schedule a single deposition or conduct any other discovery. The discovery deadline in this case came and went, and on February 28, 2006, Defendant filed his Motion for Summary Judgment and Memorandum Brief in Support thereof (Doc. # 52 and 53). Now that Defendant' s

dispositive motion is pending before this Court, Plaintiff seeks to conduct discovery, and he claims he had no reason to conduct discovery prior to the present time. [See, Motion at p. 4.] Plaintiff argues he did not know the issues that would be raised in the dispositive motion and that the District Attorney' office already investigated the incident making duplicative discovery s unnecessary. [See, id.] This argument simply lacks merit. 4. As set forth above, Plaintiff lost his right to take Defendant' deposition after he s

failed to prosecute this case and cooperate in discovery. Yet, prior to the Court' ruling on that s issue, Plaintiff had over a year and a half to schedule Defendant' deposition, but he failed to do s so. This issue has already been litigated, and thus need not be revisited. 5. Furthermore, Plaintiff has made no showing of reliance on anything that

Defendant did to allow him to assume he could conduct discovery after Defendant filed his dispositive motion. In fact, this is not what is contemplated when the parties jointly draft a Scheduling Order, nor is this procedure contemplated by the Federal Rules of Civil Procedure or

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the Local Rules. It is standard practice that a discovery cutoff date is set and a dispositive motion deadline is set shortly thereafter. 6. Perhaps even more significant is the fact that Defendant would suffer prejudice if

the Plaintiff were permitted to conduct discovery at this time. The pending dispositive motion has been fully briefed, discovery has been closed, and the Court has already approved and entered a Final Pretrial Order in this matter (Doc. # 64). Moreover, Defendant is entitled to have some closure to these proceedings. This case has been pending for over two years for an incident that took place in September of 2003. 7. Fed.R.Civ.P. 56(f) certainly does not contemplate that a party be permitted to

conduct discovery after the discovery deadline, but rather, that a party be permitted to conduct discovery in the event a dispositive motion is filed before the party has an opportunity to conduct discovery. That is not the case here. Plaintiff had over two years to conduct discovery and now is attempting to remedy the shortcomings of his case preparation. "Rule 56(f) grants discretion to the court to delay ruling on a motion for summary judgment [--] it does not compel the court to grant a continuance to a party that has been dilatory in conducting discovery." Bolden v. City of Topeka, 441 F.3d 1129 (10th Cir. 2006); 2006 U.S. App. LEXIS 6917, * 64. Plaintiff' s Motion is dilatory and lacking in merit and, accordingly, the Court should deny this motion. 8. Plaintiff would like to conduct discovery concerning information contained in the

District Attorney' Report, including the contents of the 911 audiotape, statements Defendant s made to a Denver police officer, and the circumstances surrounding a prior shooting in which Defendant was involved. [See, Motion at p. 1] Alternatively, he would like this Court to simply rule that the report is admissible. [See, Motion at p. 2] Plaintiff asserts that because the Court

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considered this report at a prior hearing, it is now admissible for purposes of the pending dispositive motion. [See, Motion at p. 2] Notably, this hearing was conducted by the Court to address Defendant' Motion to Dismiss for lack of subject matter jurisdiction, where the question s was whether or not Defendant was acting within the course and scope of his employment (Doc. # 46). The hearing was not conducted to address the merits of the case. However, merely because the report was admitted in one proceeding for one purpose does not thereby make it admissible for all purposes. Furthermore, even if the report was somehow admissible, its contents are hearsay. Plaintiff may not simply rely upon this report in order to prove his case, and by virtue of his failure to conduct any discovery prior to the discovery cutoff, Plaintiff has lost his opportunity to present evidence from witnesses shown to have personal knowledge of the facts. 9. Plaintiff argues that under Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1415,

n.12 (5th Cir. 1993), this Court should allow him to use the District Attorney' report in s conjunction with this motion for summary judgment. The Kelley Court held that testimony offered from a prior trial (a certified transcript) may be considered in assessing a motion for summary judgment. See, id. Plaintiff also argues that under E.H. Marhoefer, Jr., Co. v. Mount Sinai, Inc., 190 F. Supp. 355, 359 (E.D. Wis. 1961), this Court can take judicial notice of the District Attorney' report in conjunction with Defendant' pending dispositive motion. Plaintiff s s mischaracterizes the Court' ruling in the E.H. Marhoefer case. What the court actually stated s was that it would take judicial notice of other documents filed in the action, but not offered for the purposes of the motion for summary judgment. See, id. 10. With regard to Plaintiff' reference to the prior shooting involving Defendant, this s

is not material, not relevant, and clearly inadmissible under Fed.R.Evid. 404(b). Pursuant to

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Rule 404(b) of the Federal Rules of Evidence, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action and conformity therewith." Fed.R.Evid. 404(b). Accordingly, Plaintiff should not be permitted to conduct any discovery concerning this issue. 11. Plaintiff also incorrectly asserts that he needs to depose Detective Alonzo because

Defendant made statements to her and later made inconsistent statements. [See, Motion at p. 3.] This is simply not the case and is mere speculation based on the District Attorney' report. It s amounts to double hearsay and certainly is not admissible for purposes of this motion. Most significantly, Plaintiff could have noticed Detective Alonzo' deposition any time before the s discovery cutoff, and he did not do so. 12. In the end analysis, Plaintiff failed to conduct any discovery and he should not be

granted leave to conduct any discovery at this time. Plaintiff has not shown good cause for a continuance to conduct discovery after he has made no effort to conduct any discovery during the two years preceding the discovery cutoff. See, Bolden, supra. Thus, Defendant respectfully requests that the Court deny Plaintiff' Rule 56(f) motion. s

Respectfully submitted,

s/ Gillian M. Fahlsing Gillian M. Fahlsing Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 Facsimile: (303) 320-0210 E-mail: [email protected] Counsel for Defendant

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 27th day of April, 2006, a true and correct copy of the above and foregoing RESPONSE TO MOTION FOR CONTINUANCE was electronically filed with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following email addresses: William D. Meyer, Esq. [email protected] David J. Bruno, Esq. [email protected] s/ Kathleen Bertz Kathleen Bertz

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